A mechanics lien is a record of outstanding debt that gets attached to a property’s public records. If you file a mechanics lien against a property, there’s a huge chance its value will go down as buyers and financiers in the market will most likely not take an interest in it.
However, recording a mechanics lien requires potential lien claimants to follow strict processes and guidelines. A mechanics lien is very effective at recovering payment from property owners; hence they must be protected from fraudulent claims.
This guide focuses on the rules and requirements regarding filing a mechanics lien in Kansas. It includes the procedure for filing a Kansas mechanics lien, as well as some best practices that will ensure that you successfully exercise your lien rights.
- Who can file a mechanics lien in Kansas?
- Preliminary notices in Kansas
- When do you file a Kansas mechanics lien?
- How to file a mechanics lien in Kansas
- Deadlines in the Kansas mechanics lien process
- Best practices when filing a mechanics lien in Kansas
Who can file a mechanics lien in Kansas?
General contractors, subcontractors, and material suppliers all have lien rights in Kansas. However, there are exceptions too. Sub-subcontractors do not have lien rights, and material suppliers will be able to file a mechanics lien only if their materials are incorporated into a project.
Engineers, architects, and other similar professions also have lien rights so long as the construction or improvement of the property actually commences.
Preliminary notices in Kansas
Preliminary notices are documents that you serve on the property owner to preserve your lien rights. In Kansas, parties who have no direct contract with the owner of residential real estate property are required to serve a preliminary notice.
Note that general contractors and parties working on non-residential properties are not required to serve any Kansas preliminary notice.
There are two Kansas preliminary notices to keep in mind, the Kansas Warning Statement and the Kansas Notice of Intent to Perform.
Who must serve a Kansas Warning Statement?
Subcontractors and suppliers working on improvements or remodels of a residential property are required to serve a Kansas Warning Statement.
When do you serve a Warning Statement?
The Warning Statement must be served before filing a mechanics lien.
What must be included in your Warning Statement?
Kansas Statutes require your Warning Statement to be in the following form:
“Notice to owner: (name of supplier or subcontractor) is a supplier or subcontractor providing materials or labor on Job No. ______ at (residence address) under an agreement with (name of contractor).
Kansas law will allow this supplier or subcontractor to file a lien against your property for materials or labor not paid for by your contractor unless you have a waiver of lien signed by this supplier or subcontractor. If you receive a notice of filing of a lien statement by this supplier or subcontractor, you may withhold from your contractor the amount claimed until the dispute is settled.”
This notice must be mailed via certified mail with return receipt requested to the property owner.
What happens if you do not serve a Warning Statement?
If you do not serve this Kansas preliminary notice when you are required to do so, your mechanics lien will be invalidated. This means that you will not be able to recover your payment through a Kansas mechanics lien.
Notice of Intent to Perform
Who must serve a Kansas Notice of Intent to Perform?
Subcontractors and suppliers working on new construction of residential property must file a Notice of Intent to Perform in the office of the district court in the county where the property is located. A copy of the Notice of Intent to Perform must be served on the property owner.
Remember that this notice applies if you are working on building a new real estate structure. If you are remodeling or doing improvements on a pre-existing property, you have to serve a Warning Statement.
When do you serve a Notice of Intent to Perform?
The Kansas Notice of Intent to Perform is filed and served before filing a mechanics lien.
As mentioned, filing must be done in the office of the district court of the same county where the project is located. Service of this Kansas preliminary notice may be done via certified mail with return receipt requested.
What must be included in your Notice of Intent to Perform?
The following Notice of Intent to Perform template is provided by the Kansas Judicial Council:
Notice of Intent to Perform
NOTICE OF INTENT TO PERFORM
I, (name of supplier, subcontractor or contractor), (address of supplier, subcontractor or contractor)
do hereby give public notice that I am a supplier, subcontractor or contractor or other person providing materials or labor on property owned by (name of property owner and having the legal description as follows:
(Legal description of property)
Notes on Use
The notice of intent to perform provided for in K.S.A. 60-1103b is limited to “new residential property” which is defined as “a new structure which is constructed for use as a residence and which is not used or intended for use as a residence for more than two families or for commercial purposes. ‘New residential property’ does not include any improvement of a preexisting structure or construction of any addition, garage or outbuilding appurtenant to a preexisting structure.” K.S.A. 60-1103b(a).
The lien for furnishing labor, equipment, materials or supplies for the construction of new residential property may be claimed pursuant to K.S.A. 60-1103 after the passage of title to such new residential property to a good faith purchaser for value only if the claimant has filed a notice of intent to perform prior to the recording of the deed effecting passage of title to such new residential property. K.S.A. 60-1103b(b).
For history of the litigation giving rise to this provision, see Owen Lumber Co. v. Arthur Chartrand, 27 Kan.App.2d 72, 998 P.2d 509, judgment aff’d, 270 Kan. 215, 14 P.3d 395 (2000) and Owen Lumber Co. v. Chartrand, 276 Kan. 218, 73 P.3d 753 (2003).
What happens if you do not serve a Notice of Intent to Perform?
If you do not serve this Kansas preliminary notice when you are required to do so, you will not be able to file a valid Kansas mechanics lien. Consequently, you will not be able to enforce your lien and recover your payment through the Kansas mechanics lien process.
When do you file a Kansas mechanics lien?
General contractors, or parties with direct contracts with the property owners, must file a mechanics lien within 4 months of the date they last furnished labor or services to a project. Subcontractors and other parties with no direct contract with the owner must file a mechanics lien within 3 months of the date they last furnished labor or services to a project.
For non-residential projects, the applicable deadline may be extended to up to 5 months after the last day of work. To get this extension, you must file a Notice of Extension in the county’s district court and must do so within the original filing deadline. You should also serve a copy of the Notice of Extension by certified mail and regular mail on the property owner for the extension to be implemented.
You may find the appropriate Kansas Notice of Extension template from the Kansas Judicial Council website.
How to file a mechanics lien in Kansas
1. Prepare your Kansas mechanics lien form
The following details must be included in your Kansas mechanics lien template:
- The name of the owner
- The name and address of the claimant
- A description of the real property (this does not have to be legal property description)
- A reasonably itemized statement and the amount of the claim
o If the amount of the claim is evidenced by a written document or a promissory note, a copy of the applicable document may be attached to the claim instead of the itemized statement
Subcontractors or parties with no direct contract with the owner must also include the following pieces of information:
- The name of the contractor who contracted you for the project
- An affidavit stating that the Warning Statement was served on the owner, if required
Note that the Kansas mechanics lien must be notarized prior to filing. Be sure to sign your mechanics lien in the presence of an authorized notary officer.
2. Record the Kansas mechanics lien
Recording a mechanics lien is done in the office of the district court in the county where the property is located. You may mail your mechanics lien documents to the district court or visit the court and file the Kansas mechanics lien in person.
Note that filing a mechanics lien comes with filing costs. When mailing the document, you should include the exact amount to cover the filing fees. You may phone the district court’s office in advance to know how much you need to pay.
Also note that you need to serve on the property owner a copy of the mechanics lien. It is a good practice to mail or walk in with at least two copies of your mechanics lien form so the additional copy may be served on the owner. If you are mailing your mechanics lien, include a pre-paid self-addressed envelope so the court officers can mail you back your additional mechanics lien forms.
3. Serve a copy of the Kansas mechanics lien on the property owner
As mentioned, not only do you have to file your Kansas mechanics lien in the office of the district court, you also need to serve a copy of it on at least one of the property owners.
For general contractors, mailing the copy of the Kansas mechanics lien must be done via certified mail and registered mail. Take note that you need to use both mailing methods.
For subcontractors and parties with no direct contract with the owner, you may serve the copy of the mechanics lien on the owner via certified mail with return receipt requested. If you do not have access to the mailing information of the owner, you are allowed to post the copy of the mechanics lien in a conspicuous location in the project location.
4. Enforce/release the mechanics lien
Once the first three steps have been completed, there are two things that can happen: either you will get paid or you won’t.
If you receive your payment, you are all done. Kansas does not have specific rules on releasing a filed mechanics lien; however, a property owner may still ask you to do so. Generally, you can file a release of lien in the same district court office to clear the property of any record of the debt.
Note that if you filed a Notice of Intent to Perform, you are required to issue a notice of release in the same district court office where the initial notice was filed. Unlike releasing the Kansas mechanics lien, releasing the Notice of Intent to Perform is required.
If, on the other hand, you do not receive your payment, you can enforce your mechanics lien by filing a foreclosure lawsuit. Winning this lawsuit means recovering your payment through the foreclosure auction of the property.
Remember that a mechanics lien is enforceable within only 1 year of the filing. Beyond this 1-year period, filing a foreclosure lawsuit will not be allowed as the mechanics lien is already considered expired. If payment negotiations have not been fruitful for you, ensure that you file a lawsuit before this 1-year period elapses.
Before filing a lawsuit, you may give the property owner a heads up by serving a Notice of Intent to Foreclose. This step is not required but giving a warning to the owner about an impending lawsuit may finally get them to release your payment without going through the costly hassle of launching legal action.
Deadlines in the Kansas mechanics lien process
Best practices when filing a mechanics lien in Kansas
1. Do not forget to serve the appropriate preliminary notices
If you are required to serve a Kansas preliminary notice and you fail to do so, you will effectively forfeit your right to record a mechanics lien altogether. You should, therefore, mark your calendar and be sure that you fulfill the appropriate Kansas preliminary notice requirement prior to recording your mechanics lien. You do not want to spend time preparing your Kansas mechanics lien form only for it to be rejected because you did not comply with the preliminary notice requirements.
2. File for a mechanics lien deadline extension if necessary
If you are working on a non-residential project in Kansas, you can file a Notice of Extension to ensure that your deadline gets extended to 5 months. Knowing that you are allowed to do this may be helpful in case payment negotiations fall through at the last minute. Remember, though, that you need to file a Notice of Extension within the original deadline, so you should still keep that 4-month or 3-month deadline in mind.
3. Serve a Notice of Intent to Foreclose before enforcing a mechanics lien
If you do not receive your payment even after recording a mechanics lien, the next step is to enforce your mechanics lien through a foreclosure lawsuit. The problem is filing a lawsuit takes money and time. One way to prompt an owner to release your payment is to warn them about your impending suit via a Notice of Intent to Perform. By serving this notice, you may be able to recover your payment without having to go through a costly process.